Deep in the bowels of Gov. Scott Walker’s proposed 2015-17 budget is language to exempt research done by the University of Wisconsin System from the state’s open records law, unless it is published or patented.

This blanket exemption would spare the UW from needing a good reason to deny access to these records, as current law requires. Instead, universities could categorically spurn inquiries from citizens, media and even lawmakers looking into controversial research, potential threats to public safety, conflicts of interest or how tax dollars are spent.

Two prior attempts to exempt records of campus research, in 2013 and 2014, failed because Republican lawmakers refused to go along. “It clearly needs more discussion,” a UW lobbyist conceded after the second failed attempt. But now Walker has revived the idea in his budget, with little to no discussion having taken place.

A university official recently told The Associated Press that the UW merely seeks “a more level playing field” with states that restrict access to such records. This prompted editorial writer Ernst-Ulrich Franzen of the Milwaukee Journal Sentinel to ask two excellent questions:

“But can the university offer examples of where research has been hurt by the current rules? Or examples of a loss of funding because they were unable to compete because of the current rules?”

I forwarded those questions to UW System officials. Bill Barker, who works in the UW-Madison’s Office of the Vice Chancellor for Research and Graduate Education, provided a detailed response.

Barker listed 24 other states that restrict access to records of university research. But UW officials, he acknowledged, “cannot point to a specific instance of lost intellectual property or misappropriated research” due to Wisconsin’s records law.

However, he said, “Given the hypercompetitive environment in which we compete for scarce research resources, we feel a proactive and conservative strategy is appropriate.” Why wait for something bad to happen when you can crack down on information preemptively?

Barker also cited the “very significant burden” of records law compliance. He said one recent request from USA Today for all open and closed session minutes for the UW-Madison’s Institutional Biosafety Committee “consumed much of one of our employee’s time for almost three-and-a-half months” because of the need to painstakingly redact certain information.

I checked in with USA Today reporter Nick Penzenstadler, who made this request. He said the paper obtained two years’ worth of minutes but noted that federal rules require these to be made public on request. In other words, changing state law would not alleviate the UW’s burden in this instance — a statement Barker, given a chance, did not refute.

Moreover, federal authorities advise there are “multiple ways to make minutes available that are relatively unburdensome to both the institution and the requester.” And in fact, Penzenstadler said, “other universities keep these records in a way so they can be posted online without months of redactions.”

Among the records at issue in USA Today’s request were those regarding a UW-Madison study on deadly pathogens that has drawn international concern about potential dangers to the public.

But Barker said the UW considers the volume of requests it receives for such records to be “an unfair assault on academic freedom which we cannot condone or support.” He specifically mentioned “lethal pathogens,” along with records of research involving animals, stem cells and climate change, as the kind of requests for which the UW sought relief.

Such disregard for Wisconsin’s tradition of open government, and for the public’s right to know, does not belong in the bowels of the state budget. The bowels, maybe, but not the budget.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Bill Lueders, a reporter with the Wisconsin Center for Investigative Journalism, is the group's president.

Last Updated on Wednesday, 18 February 2015 10:20

Action alert on proposed exemption for records of UW research

Thursday, 05 February 2015 11:40
By Bill Lueders

The Wisconsin Freedom of Information Council is issuing an actionalert regarding Gov. Scott Walker's proposal to exempt records of University of Wisconsin research from the state's Open Records Law. The governor's budget bill, SB21, on P. 181-182, would create this new section of the statute:

19.36 (14) UNIVERSITY OF WISCONSIN SYSTEM AUTHORITY. Any authority may withhold from access under s. 19.35 (1) information in a record that is produced or collected by or for the faculty or staff employed by the University of Wisconsin System Authority in the conduct of, or as a result of, study or research on a commercial, scientific, or technical subject, whether sponsored by the University of Wisconsin System Authority alone or in conjunction with an authority or a private person, until that information is publicly disseminated or patented.

This would create a blanket exemption for all records of UW research that university officials choose to not disseminate or patent. It would be invoked to prevent public access to records regarding controversial research. It would keep the public from knowing details about the conduct of publicly funded institutions and allow abuses to go undetected.

This is the third attempt in recent years to shut off public access to records of university research.

The first prior attempt occurred in May 2013. University officials asked the Legislature's Joint Finance Committee to insert language into the budget to shut down access to records of UW-Madison research. They were not successful. A memo to lawmakers circulated as part of this effort specifically cited the UW's desire to avoid having to respond to requests for research involving the use of animals, an area of study that even defenders believe raises ethical questions that warrant public awareness and discussion.

Then, in February 2014, lawmakers introducedAB 729 just days before holding a public hearing on same. The Legislative Reference Bureau's analysis said the bill would exempt "information, data, or records produced orcollected by or for faculty or staff of [UW System] institutions as a result of study or research on commercial, scientific, or technical subjects. The exemption applies whether or not the study or research is sponsored by the institution alone or in conjunction with a governmental body or private concern. The exemption expires when the information is publicly released, published, or patented."

State Rep. Steve Nass, then chairman of the Assembly Committee on Colleges and Universities, now a member of the state Senate, objected to this change. It was removed from the bill prior to the hearing.

Legislation deemed dead on arrival by the Joint Finance Committee and an Assembly committee should not find new life in the governor's budget. Any such change should be deliberated as stand-alone legislation, on its merits. Or lack thereof.

Current law already allows state universities, like any state or local public authority, to deny access to records if they can make the case that the harm from release outweighs the presumption that the public is entitled to access. This bill would eviscerate that standard for the University of Wisconsin. No longer would our universities need a good reason, or any reason, to deny access.

We hope that advocates for open government in Wisconsin will unite in opposition to this bad idea.

It’s a pretty simple question for a public official: “What exactly do you do with your time?”

Sometimes, the best way to answer that question is to obtain the official’s calendar, through the state’s open records law.

In my work as a reporter, I’ve done this for the state treasurer and his staff, who work for an office with few official duties. I’ve also used the monthly calendars of Gov. Scott Walker to plot his travel and track his day-to-day meetings.

So when I wanted a better understanding of how the duties of Sheboygan Mayor Mike Vandersteen and Chief Administrative Officer Jim Amodeo overlap, I asked to see their calendars.

Amodeo’s response was simply, “Oh, OK.”

Vandersteen’s response was more terse. While he said he would be willing to discuss his day-to-day duties, he considered the request a burden, given the small size of his staff and the fact that his calendar contained personal items.

Both officials eventually provided these calendars, but with a letter asserting that these documents did not actually constitute a record under state law. As such, the letter said, they had no obligation whatsoever to hand them over.

It was a bit bewildering. How could these records, so basic to the performance of their official duties, be exempt from the law?

The letter’s reasoning was that calendars are basically “akin to drafts” or notes prepared for the mayor or administrator’s personal use. Wisconsin’s open records law exempts such drafts or notes from disclosure requirements but construes this exemption narrowly, like all exemptions.

The city’s argument rests on a few out-of-state cases — one from Kentucky and one from California — in which courts upheld the denial of access to calendars. In short, both courts decided that the public’s interest in disclosure was outweighed by the government’s interest in keeping those records under wraps.

In a more recent case, the city of Philadelphia successfully argued that the calendar of its mayor and city councilmen were not records. A Pennsylvania appellate court found that while they may carry an official purpose, the calendar itself is more of a “working paper” that is personal to the office.

But these cases mean little given Wisconsin law’s broad presumption of access and the narrowness with which courts have interpreted the exemption for drafts.

Based on state case law and guidance from the Wisconsin attorney general, the Wisconsin Freedom of Information Council advises: “Once a document is shown to anyone besides the originator or a person working on his or her behalf, it is no longer a draft.”

Vandersteen stated that redacting his calendar and turning it over was simpler than waging a long legal battle. But that means the issue, and his interpretation, will not be tested in court.

Amodeo said he simply didn't see the use in withholding his calendar, especially given the negative publicity that could follow: “I mean, if I shut you down and say, ‘No, you can’t have it,’ then you’ll just end up writing something on that. Then everyone starts asking, ‘Well, what does he have to hide?’ ”

Therein lies the absurdity of such a dispute: You don’t need a legal requirement to understand that the public has a right to know what their officials are up to. Erecting barriers to the most basic information is not just against the law — it’s also politically unwise.

One of Wisconsin’s most vexing open records issues could be headed toward resolution.

For the past several years, problems have arisen over differing interpretations of how the federal Driver’s Privacy Protection Act should affect access to records here. Journalists and others contend it was never meant to block the release of routine information in police reports, while municipalities worry they’ll face punitive action by releasing it.

The Act was passed in 1994 to protect disclosure of personal information obtained through Department of Motor Vehicle records. But it has never affected the release of information gathered in police reports, until recently.

In 2012, a federal appeals court ruled that the village of Palatine, Illinois, may have violated the act by leaving parking tickets, which included personal information, on the windshields of motorists. The district court later ruled the village did not violate the DPPA; an appeal of that ruling is pending.

Some Wisconsin police departments, instructed by their insurers, began redacting personal information from police reports. No other state — not even Illinois, where the Palatine case occurred — adopted this interpretation.

Suddenly, journalists in Wisconsin could no longer conduct one of their basic job functions — reporting on issues of public safety.

The New Richmond News, one of the newspapers that received such blacked-out reports, sued the city of New Richmond, over these redactions. The paper prevailed in circuit court, but the city appealed. The case is now before a state court of appeals and could end up in the state Supreme Court sometime this year.

In June 2014, when nearly 80 municipalities were following the black-out interpretation, the Wisconsin Newspaper Association reached an interim compromise with the League of Wisconsin Municipalities. The non-binding agreement allows for release of full reports as long as the requester uses an agreed-upon form to indicate who they are and verify that the use of information is related to public safety.

This compromise was largely successful, allowing reporters to resume reporting on important issues. It also relieved busy police clerks of endless redaction efforts.

But a few local entities continue to disregard this agreement, so there remains a need for clarification by the courts.

For instance, the Taylor County Sheriff’s Office continues to redact personal information, while the Medford Police Department, located in the same building, releases it.

The DPPA was enacted to protect public safety. That’s the same reason the open records law holds that police reports are public. These two laws are not at odds with one another.

In my former role as a reporter, I relied on police reports to bring to light a series of improper police pursuits that caused accidents involving innocent, uninvolved motorists. One victim, a pregnant woman trying to get out of the officers’ path, was severely injured and blamed for the collision. Access to the police report — including the names and contact information of the woman and several witnesses — allowed me to expose egregious police misconduct that prompted change.

Police and accident reports are basic public records, and the ability to obtain them should not be compromised. We look forward to the courts bringing clarity to this issue, and upholding the public’s right to know.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Julia Hunter, a former newspaper reporter, is the member services director for the Wisconsin Newspaper Association.

Recently, I was told by a court official in Outagamie County that federal law prohibited the release of the name of a man I had just heard speak in open court. He was a participant in the county's Drug and Alcohol Treatment Court. He had been charged with driving while intoxicated as a fourth offense, but was offered a chance to go through a treatment program instead of serving jail time.

I attended the proceeding as a reporter for the Appleton Post-Crescent, working on a story for Gannett Wisconsin Media’s statewide probe into repeat drunken drivers. The man had made a point about the costs of the program and I wanted to verify his charge history.

But when I asked for his name, the court official said it could not be released, citing the federal Health Insurance Portability and Accountability Act of 1996. That law, commonly called HIPAA, protects private health information.

It also, as this episode attests, is often misapplied.

In this case, there was no valid reason for withholding the man's name, and after a discussion with the circuit judge, I was able to obtain it. I ended up using his comment but not naming him in my story.

This was a public program, run by publicly paid officials, involving criminal defendants serving court-ordered sentences. The decision of whether to use this person’s name should be up to the media, not the court official.

Health care organizations like hospitals, life insurers, ambulance services and public health authorities are all subject to HIPAA rules. Firefighters, police, court officials, reporters and patients themselves are not.

Neither are public officials who have nothing to do with the delivery of health care services. And yet, in one instance, a Louisiana State University representative told reporters he couldn’t discuss a player’s knee injury. “Due to these new medical laws, our hands are tied,” the official said.

Often, the most valuable information available to reporters is found on health facility directories, which are not protected by HIPAA. Hospitals may release an individual’s name, location in the facility and general condition. HIPAA also doesn’t bar reporters from interviewing patients in a waiting room.

Statistical information related to hospitals, including their billing data, is not covered by HIPAA. Much of this information can be released electronically without names attached.

Felice Freyer, the association’s treasurer and a member of its Right to Know Committee, said HIPAA overreach is widespread.

“Often times, people are unsure about the law and can’t be bothered to check so it’s easier to say ‘no’ and refer to HIPAA,” said Freyer, a health care reporter for the Boston Globe. “Frequently, hospitals say they can’t let you talk to a patient, but that’s not true.”

No one disputes that people have a right to privacy when it comes to personal medical matters. But that right should not be taken to absurd lengths, beyond what the law prescribes.